District of Columbia References laws & HR compliance analysis

District of Columbia References: What you need to know

Reference checks are a useful way for employers to gather information about applicants that they might not discover through the application and interview process. However, despite the usefulness of reference checking, many employers are legitimately concerned about lawsuits from former employees based on information provided in response to a request for a reference, and liability for the actions of employees where the company failed to conduct a thorough reference check. A detailed discussion of these legal issues is available.
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To deal with employers' reluctance to provide information about former employees, a number of states have enacted laws “immunizing” employers against employee claims over such disclosures. The protections provided by these immunity laws are from claims for defamation of character—libel and slander. The District of Columbia is one of only a few jurisdictions that has not enacted a reference immunity law. However, the District of Columbia Court of Appeals has held that a release from liability may shield an employer from liability when providing a negative reference (Woodfield v. Providence Hospital,779 A.2d 933 (D.C. Ct. App. 2001)).
In this case, the employer's handbook contained a provision that the employer would release only employment dates and position title in response to reference requests. However, after a former employee signed a release in connection with a reference request from a prospective employer, the employer provided a negative reference. The former employee then sued, alleging defamation. The court rejected her claim, ruling that the former employee consented to the reference and that she failed to show that the employer acted with malice ...

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